Uttarakhand High Court
Mr. Vinodanand Barthwal vs Rajendra Singh Was Set Aside And Suit ... on 3 June, 2025
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
Office Notes,
SL. Date reports,
No. orders or COURT'S OR JUDGE'S ORDERS
proceedings
or directions
and
Registrar's
order with
Signatures
SA No. 51 of 2017
Hon'ble Rakesh Thapliyal, J.
1. Mr. Vinodanand Barthwal, learned
counsel (through V.C.) and Mr. Bhupendra
Prasad, learned counsel for the appellant.
2. Mr. Dinesh Gahtori, learned counsel
for the respondent.
3. The instant second appeal has been
preferred by the appellant/defendant
against the judgment and decree dated
07.02.2017, passed by the District Judge,
Pauri Garhwal, in Civil Appeal No. 27 of
2013, Smt. Seema Devi vs. Rajendra
Singh @ Raju whereby the judgment and
order dated 12.09.2012 passed in Civil
Suit No. 21 of 2001, Seeta Devi vs.
Rajendra Singh was set aside and suit filed
by the plaintiff/respondent for permanent
injunction was decreed.
4. This second appeal was admitted on
19.04.2017 on the following substantial
question of law:-
"Whether the learned appellate court
erred in law and in fact while allowing
the appeal of the plaintiff/respondent
without reversing the specific finding
given by the trial court in the teeth of
Section 96 CPC"?
5. While admitting the appeal, the trial
court record was summoned. In the
meantime sole respondent/plaintiff- Seeta
Devi died and Misc. application no. 3462 of
2022 under Order 22 Rule 10A of CPC was
moved by the legal heir of the respondent
thereby intimating about the death of the
sole respondent, however, since, no
substitution application was filed for
substituting the legal heirs of Seeta Devi
(deceased), the Coordinate Bench of this
Court by order dated 26.06.2023 abate
this instant second appeal. Thereafter,
restoration application (MCC No. 3464 of
2024) was moved on behalf of the
appellant for recalling the order dated
26.06.2023 and the same was taken on
record subject to deposition of cost of Rs.
5000/-.
6. It has been informed to this Court
that cost of Rs. 5000/- imposed by the
Coordinate Bench on 18.07.2024 has been
deposited. Consequently, substitution
application i.e. 3469 of 2024 was moved
and notices were issued to the legal
representative of the deceased/
respondent.
7. Mr. Dinesh Gahtori, learned counsel
put his appearance on behalf of the legal
heir of the sole respondent and sought
time to file objection to the restoration
application, delay condonation application
and setting aside abatement application.
On 18.11.2024 delay condonation
application (IA No. 3465 of 2024) was
dismissed for non prosecution and
consequent to it restoration application
(MCC No. 3464 of 2024) was also
dismissed. Thereafter, restoration
application (MCC No. 3473 of 2024) was
moved for restoration of the previous
restoration application and the same was
allowed on 12.02.2025 and the matter
was posted for 28.04.2025 for hearing of
the restoration application (MCC No. 3464
of 2024) along with delay condonation
application (IA No. 3465 of 2024).
8. Mr. Gahtori, learned counsel for the
respondent raised serious objection on the
restoration application and submits that
restoration application is not maintainable,
and, furthermore, he submits that there is
an inordinate delay in moving this
application.
9. Admittedly, this is an admitted
appeal arising out of civil suit instituted by
the respondent/plaintiff which was
dismissed, against which the appeal was
filed. There is non-concurrent finding of
the court below, therefore, this Court is of
the view that that matter should be
decided on its own merit and merely on
the ground that there is an inordinate
delay in moving the application the merit
of the case cannot be ignored.
10. After hearing the arguments of the
learned counsel for the parties and further
taking into consideration that this is an
admitted appeal, the restoration
application (MCC No. 3464 of 2024) as
well as delay condonation application (IA
No. 3465 of 2024) are allowed. The
instant second appeal is restored to its
original number.
11. Since this is an old appeal, list on
10.06.2025 at 2:00 pm for final disposal.
It is made clear that the matter shall not
be adjourned.
(Rakesh Thapliyal, J.)
03.06.2025
Parul
